The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1887-01-07
Supreme Courl-January Term.

| +,
Messrs. Dare and Poepoe for the de
Tense. The Hawaiian jury were en-
| paneled and the witness Keolahoa wv,
| whose cross-examinatiOn by counsel for
the defense was not completed the pre-
! vious evening, was again placed upon
the stand, but, without proceeding, Mr
Dare moved for the discharge of the
prisoner on the ground that he was not
legally before the Court, which had
| never obtained jurisdiction over him on
the charge of murder; that he had not
| been committed for murder; that at the
time of his arrest he was not charged
| with murder, but was charged with a
violation of sections 5 and Z, chapter 7,
of the Penal Code of this Kingdom
also, upon the grounds that ut the pre-
liminary examination he was charged
| on the Odd of October, 1886, with the
! crime of manslaughter, contrary to the
| provisions of the said sections; that the
official transcript of the proceedings at
the original trial was headed, ''The
King VS.. Paulo, manslaughter that
the defendant, PaulO, appeared before
His Honor Mr.. Justice McCully at the
Third Judicial Circuit Court in the Ha-
makua district in November, and that at
that time there was a change of venue
by the present Attorney General, who
was then acting as deputy under Mr..
AhOlo; that that motion was consented
to by MIR. Kinney, counsel for the de-
Tense that the change of venue was
made by reason of such motion and
consent; that the change of venue was
on the charge of manslaughter from Ha-
makua to Honolulu, and that the
change of venue having been made
upon the charge of manslaughter, there
never had been any official charge of
murder, and that therefore the defend
ant was not now legally before this
Court on that charge; that the Attorney
General of his own right had no power
to charge this man with murder except
upon the authority of the lesser officials,
considering that he was not charged
with murder in the first instance that
there was no power in the legal or in
the judicial department. to increase the
magnitude OF a cha.ge after commit
ment; that the defendant was held upon
the charge of manslaughter, afterwards
b ling arraigned upon the more serious
Charge OF murder upon the mere volition
of the Attorney General. The reason
why this motion was not brought for
Al, IL.
was made in the Hawaiian language,
which he (Mr. Dare) did not under
stand.
His Excellency Mr. Rosa instanced
the parallel case OF man being charged
with housebreaking and committed on
that charge. If it should afterwards
be found that the circumstances would
not warrant it he might then be charged
with larceny. In the case now before
the Court the defendant might have
been charged with manslaughter and
committed for that, but the Court now
had 10 consider the charge upon which
he WAS rraigned-murder Is was
within the province of the Attorney
Court after commitment, provided it |
were within the scope of the commit |
ment. This was the main ground upon |
which he relied. The man had pleaded |
to the charge of murder, and he (Mr. |
Rosa) claimed that he was bound by his |
plea.
Mr.. Dare, in answer to this, said |
that the rules which held good in |
minor cases could not be applied to the
more serious one which now had to be
considered. 1t was very different
matter when a man was charged with a
crime the penalty for which was ten
years penal servitude, and then alter it
to one to which the death penalty at
tached. The charge of manslaughter in
the several degrees and that of assault
were embraced in the charge of murder.
but murder was not embraced in
manslaughter. 1t would be competent
for the AttOrney-General to change the
charge from murder to manslaughter, or
from manslaughter in the first to the
second degree, but he could not present
Dill OF indictment fer murder when the
man was originally committed for man.
slaughter. Mr.. Dare contended that that
court could look behind the indictment.
Mr.. Justice McCully obtained no more
over that man for murder
than over him (lIr. Dare). The change
OF venue to Honolulu had been made for
the convenience of the Attorney General,
who could not be heard as public ac-
cuser and who had not the power to
accuse man for greater crime than
that for which he had originally been
committed.
His Honor asked Mr. Dare what he |
anticipated would be the effect if the
motion was sustained.
Mr.. Dare ID he had no right to con-